Justin.tv used to be one of the go-to channel-streaming sites for UFC fans who wanted to watch pay-per-view fights without shelling out the cash — until the UFC filed a lawsuit against them in January 2011. As UFC lawyer Donald J. Campbell said at the time:

“Zuffa has attempted to work on numerous occasions with Justin.tv over nearly a two-year period to encourage it to prevent or limit its infringing activities. Regrettably, Justin.tv has not only turned a blind eye to the massive online piracy occurring on its website, we believe it has actually induced its users to commit copyright infringement thus leaving Zuffa no alternative but to take this fight to the courts.”

The suit came six months after the UFC served a subpoena on Justin.tv to get the names of users who provided streams of UFC broadcasts. But in a blow to the UFC’s ongoing battle against Internet piracy, the charges against Justin.tv were mostly tossed out earlier this month. And now, some analysis from people who understand this stuff a lot better than I do…

Basically, Zuffa focused on two areas not covered (or not clearly covered) by safe harbors. The first is trademark, which is neither covered by the DMCA’s safe harbors nor Section 230′s safe harbors — though, many courts have accepted similar rules that limit liability to third party service providers anyway. In this case, the court is extremely skeptical of the trademark claims, in part because it seemed clear that Zuffa was merely trying to use trademark law as if it were a “mutant copyright law,” which courts have rejected in the past.

The other attempt to get around safe harbors was to use the Communications Act, which has rules against “intercepting cable.” Justin.tv actually suggested that Section 230′s safe harbors should protect it from that claim — which makes sense — but the court doesn’t want to touch that argument. Instead, it just says that the basic idea that Justin.tv is illegally intercepting cable doesn’t make any sense — and notes, again, that it appears to be Zuffa seeking to do an end-run around copyright law…

Trademark. Justin.tv argued that Zuffa’s trademark claims were Dastar-ed. The court partially disagrees because Zuffa wasn’t claiming reverse passing off. Nevertheless, Dastar wipes out Zuffa’s claims about any trademarks actually embedded in the video stream, such as Zuffa’s trademarked Octagon fighting ring, because trademarks would allow Zuffa to control the copyrighted material even after the copyright term expired. Instead, “the Court limits Zuffa’s trademark claims only to the display of Zuffa’s trademarkswhich are not an inherent part of the video broadcast.” Whatever that means…! In a footnote, the court also “expresses extreme doubt” about Zuffa’s trademark inducement claim.

Communications Act. Zuffa’s claims relate to the “stealing cable” provisions. Justin.tv claimed that 47 USC 230 applies, a pretty logical argument given that Zuffa is bringing a non-IP claim against Justin.tv for third party content. However, the court sidesteps the Section 230 issue, saying it’s never been applied to the Communications Act (true) and that the court couldn’t find any analogous “stealing cable” claim against websites, and it didn’t want to touch this “novel” issue.

Instead, the court dismisses the “stealing cable” claim on its elements. The court says:

In essence, Zuffa alleges that Justin.tv’s users copied Zuffa’s UFC event and then rebroadcast the UFC event over the internet. This is not the type of conduct properly addressed by the Communications Act, but by copyright law (and, potentially, trademark law) because Justin.tv had no relationship with the original cable or satellite signal: by the allegations, Justin.tv did not receive or intercept any actual cable or satellite signal or broadcast. The Court finds no evidence in the statutory language, other cases, or legislative history that the Communications Act addresses this type of conduct or was meant to bolster or act as a separate type of copyright claim.

In a footnote, the court notes the troubling implications of Zuffa’s argument:

if the Court were to allow claims such as these, it would have to allow similar Communications Act claims against scores of “cloud computing” service providers such as Microsoft, Apple, Google, Amazon.com, Dropbox, Box.net, and others because Jusint.tv’s [sic] particular streaming service would be irrelevant. As an example, say a person took a snippet (or longer) of video of a UFC match being broadcast on their television with their iPhone, Windows Phone, etc. The iPhone then automatically uploads that video to one of dozens of cloud storage systems such as Apple’s iCloud. The Court refuses to find that Apple (or Microsoft, etc.) would be liable under the Communications Act for merely receiving and storing this data under the Communications Act. Yet, Zuffa arguesfor exactly this result when it argues that Justin.tv’s mere receipt of this video stream makes Justin.tv liable. In passing the Communications Act, Congress did not intend such a result, and this Court will not broaden the effect of the statute in this manner.

Amen!

At its core, the lawsuit is about copyright infringement, and Justin.tv didn’t attempt to dismiss that claim. So the case hasn’t gotten to the real meaty claim yet. It’s my (presumably biased) position that Justin.tv should clearly qualify for the 512(c) safe harbor.

To my layman’s ears, it sounds like the lawsuit was dismissed for the same reason that SOPA didn’t pass — it would have set hefty precedents that threatened all kinds of free speech and communication on the Internet. And so, the UFC will have to find another way to combat piracy, like suing their own fans. Hey, it worked for the music industry, right?

Cagepotato Comments

Showing 1-25 of comments

I was just on JTV watching Diaz kick the Cowboy's ass. Pretty sweet! Thanks CP for telling me what JTV is all about!!

IronClad- March 22, 2012 at 3:11 pm

Fuck DW. Dude's filthy rich. Its not an excuse for stealing but hey, where there is a will there is a way and the suckers will pay $50 while we watch em for free dollars.

KidDinomite- March 22, 2012 at 10:23 am

For all Dana's comical overconfidence and grandstanding against the internet and basically all the people that allow him and the UFC to be in the very positions that they're in, I would like to be a fly on the wall when he first heard this news from his attorney. I bet he threw his phone at the wall or some shit. This is what happens with greed. It's time to lose the Pay Per View format. Why? The internet has made 'pay' tv obsolete. Screw Netflix, Hulu, and every other service that forces you to pay for broadcasts. The way I see it, most shows are so damn awful, they should pay you for wasting your time. The same applies to a $60 PPV that does not deliver. And the UFC has had its fair share. Just make all championship fights available for free. That will equal higher ratings on National TV which is a shit-load more than you'll get from PPV.

But will Dana concede that PPV is obsolete? Of course not. The man's greed and ego are too big to be contained. Nevermind the short-sighted business practices, nevermind there's more money through advertisement aqnd viewership on FOX. To go after the fans who make the UFC popular by telling their friends to watch the fighters who are still underpaid as a result of an outdated business model, is just stupid, especially in this economy.

TellaTruth- March 22, 2012 at 10:15 am

I agree with the taco. It's ridiculous that the ufc believes we will/should pay full price for a lousy download stream! when I was with out satellite I thought, "no big deal I'll just watch it from the laptop." then I saw it was gonna be full price, FORGET IT!

@dpclass - unless you got some plutonium or a lightning rod to capture the 1.21 gigawatts of electricity to fuel your flux capacitor that will undoubtedly send you into the future (4/21/12) - I do NOT think you will be watching UFC 145 this weekend dumbass. But, If my calculations are correct, when this baby hits eighty-eight miles per hour... you're gonna see some serious shit.

dpclass001- March 22, 2012 at 9:45 am

Fuck you dana white, looks like i'll be watching ufc145 for free this weekend:)

HEY- March 22, 2012 at 9:06 am

HAH

abenormal- March 22, 2012 at 8:44 am

The RIAA sued music fans who (allegedly) distributed music. Distributing copyrighted content is illegal, and the way Napster and LimeWire work means that downloading a song also uploaded the song simultaneously. Dana Fucking White talks like he wants to sue people who watch streams. The problem there is that there's nothing illegal about watching a stream (or downloading a file). The law is being broken by the uploader or streamer, not the downloader or viewer.

The12ozCurls- March 22, 2012 at 7:27 am

Damn lawyers have their own freaking language. And it's called total horse-shit.

I can see them still forcing Justin.tv to provide information on who uploaded the streams, and then go after those people. But it doesn't look like they will be able to stick Justin.tv with anything. I'd prefer if the UFC and other corps could work out deals with sites like Justin.tv to charge a lower price for the stream, so they could make money off of it instead of just trying to shut it down. You can't stop the internet, baby!